Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20598 of 2018 Applicant :- Mithun Bhartiya Opposite Party :- State Of U.P.
Counsel for Applicant :- Dhirendra Kumar Srivastav Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned AGA and perused the record.
Contention raised at the Bar is that the applicant has been falsely implicated in the present case. It has been further submitted that the father of the prosecutrix has lodged FIR, dated 14.02.2018 for the incident said to have taken place on 13.02.2018, under sections 376 IPC and 7/8 of the POCSO Act with the specific allegation that the named co- accused Majhari has outraged the modesty of his minor girl, aged about 16 years on the fateful day at about 10.45 P.M. The victim neither in her statement recorded on 15.02.2018 under section 161 Cr.P.C. nor before the doctor made any allegation of commission of rape upon her by the applicant. For the first time in the statement recorded on 24.02.2018, under section 164 Cr.P.C., recorded i.e., after nine days of the earlier statement, named the applicant and levelled allegation of commission of rape against him and stated that due to haste she might have taken the name of the aforesaid Majhari and Afsar. It is next submitted that on the radiological test the victim girl was opined to be about 18 years of age and only to malign the name of the applicant with ulterior motive, the victim has fastened the applicant in the present crime, that too after only nine days of her earlier statement given under section 161 Cr.P.C. It is a clear cut case of false allegation and the statement given under section 164 Cr.P.C., establishes that it is a tutored one. The applicant is in jail since 23.02.2018, having no criminal antecedents to his credit.
Learned AGA opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail.
Let the applicant Mithun Bhartiya, involved in Case Crime No. 53 of 2018, under sections 376 IPC, 3/4 of the POCSO Act, P.S. Saray Inayat, District Allahabad be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST HIM IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court.
Order Date :- 30.5.2018 shailesh